Florida Family Allowance
In Florida, during the pendency of the estate administration, a surviving spouse and the decedent’s lineal heirs are entitled to what is called a “family allowance” for their maintenance during the administration. This is set forth in Fla. Stat. 732.403, which states:
In addition to protected homestead and statutory entitlements, if the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedent’s lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. The court may order this allowance to be paid as a lump sum or in periodic installments. The allowance shall not exceed a total of $18,000. It shall be paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. If the surviving spouse is not living, it shall be paid to the lineal heirs or to the persons having their care and custody. If any lineal heir is not living with the surviving spouse, the allowance may be made partly to the lineal heir or guardian or other person having the heir’s care and custody and partly to the surviving spouse, as the needs of the dependent heir and the surviving spouse appear. The family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides. The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid. For purposes of this section, the term “lineal heir” or “lineal heirs” means lineal ascendants and lineal descendants of the decedent.
This statute became effective, in this form, on January 1, 2002 – i.e., over two decades ago. One has to wonder if there is any discussion on raising that dollar amount in light of the current costs of living, inflation, and the like.
One interesting case about the topic of family allowance was the Second District Court of Appeal’s opinion in Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002). In the probate court, the surviving spouse petitioned for a lump sum payment of family allowance in the amount of $6,000, which was opposed by the personal representative (the decedent’s son from a prior marriage). The probate court determined that the surviving spouse was permitted the allowance and ordered it to be immediately payable from the estate. The personal representative failed to pay it and the surviving spouse sought twice to compel the payment. The probate court again ordered the payment but this time permitted it to be made in 6 $1,000 installments. The surviving spouse then petitioned the probate court for an order awarding her attorney’s fees, claiming her entitlement based on a benefit she rendered to the estate and for the efforts her counsel expended in obtaining the allowance. The probate court disagreed and denied the request for attorney’s fees, to which the surviving spouse appealed. On appeal, she argued not only the benefit to the estate by requiring a recalcitrant personal representative to perform his duties but also that equity would be served by requiring the payment at the risk of diminishing the purpose of family allowance, citing the inequitable conduct doctrine. The appellate court agreed and reversed the order denying the attorney’s fees.
Should you find yourself in a position to seek a family allowance to be paid during the estate administration, it would be wise to consult your trusted probate lawyer.